Twitter User's Conviction Imperils Free Speech in Spain

After a previous acquittal, the Spanish Supreme Court has sentenced singer César Strawberry to prison for several off-color jokes he made on Twitter. The court’s decision has been criticized for violating protections on freedom of speech.

The Spanish Supreme Court has sentenced
the singer of the Spanish group Def con Dos, César Strawberry, to a
year of prison for the crimes of glorifying terrorism and
humiliating victims of terrorism.

The offenses stem from comments published
on his Twitter feed between November 2013 and January 2014, in which
he made fun of some victims of terrorism and criticized some public
authorities, wishing death upon them.

The verdict of the Spanish Supreme Court overturns the National High Court's acquittal of the singer, a decision that was quickly appealed by the public prosecutor. The Supreme Court ruled that the messages were
humiliating and mocking in nature, "feeding hate speech,
legitimizing terrorism as a means of resolving social conflict, and
forcing victims to 'recall the painful experience of threat,
kidnapping or murder of a close family member.'"

'Terrible' for freedom of expression

The Supreme
Court does not share the National High Court’s opinion that the
messages transmitted "a critique of the social and political
situation" and were of a "peaceful and exclusively cultural
nature," and were therefore protected under the freedom of
expression.

The Observatory of Civil Rights and
Public Freedoms has published in the Rights International Spain blog
an article that analyzes and critiques the Supreme Court’s ruling.

According to this article, the ruling "is terrible news for the
freedom of expression, in line with the gradual deactivation
of fundamental rights by public authorities, in this case by the
judicial system."

The article goes on to explain that "at
a formal level the ruling appears to deliberate the right to freedom
of expression just as the European Court of Human Rights would," but "the problem arises when that which should be exceptional —
the limitation of that right — becomes perhaps not the norm but
certainly something habitual, well within reach of certain policies,
interests or ideologies, due to the disappearance of the system of
legal and judicial guarantees enshrined in the constitution for
the protection of citizens’ fundamental rights."

'Out of context'

The Observatory highlights the perils
of the concept of hate speech inasmuch as "it has become a
genuine mantra, a key ingredient, serving as a crutch and an excuse
that allows certain judicial actors of a notably conservative stripe
to impose their perspective, which may lead to illegitimate
restrictions of the right to freedom of expression. It contributes
one more brick in the wall that some would like to erect around
citizens, to the benefit of certain ideologies."

In this case, the Observatory holds
that "the Supreme Court has chosen to analyze these comments out of
context, in a purely formal, literalist, biased and partial manner,
when in fact they are clearly cultural and political utterances with
which the Court simply disagrees. The Court finds these utterances
hateful and therefore doesn’t hesitate to identify them as ‘hate
speech.'"

In this regard, the article argues
that, "in evaluating the protection of freedom of expression, it is
important to distinguish clearly the kind of discourse in question.
The degree to which this freedom must be protected depends upon the
kind of expression at stake. This is determined not only on the
basis of the content of the utterance, but also the tone and the form
of the message. The right to freedom of expression includes freedom
of opinion and specifically political opinion, as well as freedom
of cultural expression in all its manifestations and kinds. There are
many factors to take into account in evaluating a given utterance and
recognizing its protection as the exercise of a fundamental right."

Last word is yet to come

According to the Observatory, "The
Supreme Court’s ruling abandons this position and steps into the
ring against Strawberry’s political and cultural utterances in the
worst way possible: denying their political character, using a
totalitarian and abusive language of negation and exclusion. The
Court’s ruling does not take into account nor respect the other’s
ideas. It confronts him in an intolerant manner, using a
counter-discourse that is hyper-correct in form but extraordinarily
violent in fact, nothing short of an authoritarian imposition of
opinion without any true legal analysis."

The Observatory of Civil Rights and
Public Liberties concludes that "this is not the first time that
the Supreme Court has acted in this way, proving that it is beyond
its depth in these questions. The last word has not yet been spoken,
as the Constitutional Court will no doubt weigh in, and if necessary
the European Court of Human Rights, which is surely the best court to
hear this case as it is not conditioned by the ideological
sectarianism and lack of constitutional safeguards which
characterizes our highest courts when confronted with certain
issues."